Digital Economy Bill (HC Bill 45)

9Any agreement that has effect under paragraph 15 of the existing code and that would be sufficient for the purpose of doing anything wholly inside a sewer if that paragraph continued in force is sufficient for that purpose under paragraph 98(2) of the new code.

5Court applications for required rights etc

10(1)This paragraph applies where—

(a)before the time when the new code comes into force, a notice has been given under paragraph 5(1) of the existing code, and

(b)at that time no application has been made to the court in relation to 10the notice.

(2)The notice has effect as if given under paragraph 19(2) of the new code.

11(1)This paragraph applies where before the time when the new code comes into force—

(a)a notice has been given under paragraph 5(1) of the existing code, 15and

(b)an application has been made to the court in relation to the notice.

(2)Subject to the following provisions of this paragraph, the existing code continues to apply in relation to the application.

(3)An order made under the existing code by virtue of sub-paragraph (2) has 20effect as an order under paragraph 19 of the new code.

(4)If the operator gives a notice in accordance with sub-paragraph (5), from the time when the notice takes effect—

(a)takes effect at the end of the period of 28 days beginning with the day on which the notice is given; but

(b)35does not have effect if before the end of that period the court or any person to whom the notice was given gives a notice under this sub-paragraph.

(7)A notice under sub-paragraph (6) may be given by the court only if it appears to the court on its own motion that it would be unreasonable in all 40the circumstances for the application to have effect as if made under paragraph 19(3) of the new code.

(8)For the purposes of sub-paragraph (7), any difference between the amount of any payment that would fall be to made under an order under paragraph 5 of the existing code and under an order under paragraph 19 of the new 45code is to be disregarded.

(b)giving a notice or making an application to the court under paragraph 19 of the new code in respect of the same right.

(10)5The operator must bear any costs arising from the service of a notice under sub-paragraph (4) or any action taken by the operator within sub-paragraph (9).

Temporary code rights

12(1)The coming into force of the new code does not affect any order made under 10paragraph 6 of the existing code.

(2)An application under that paragraph that is pending in relation to proceedings under paragraph 5 of that code when a notice under paragraph 11(4) takes effect in relation to the proceedings has effect as an application under paragraph 26 of the new code.

15Compensation

13The repeal of the existing code does not affect paragraph 16 of that code, or any other right to compensation, as it applies in relation to the exercise of a right before the new code comes into force.

Objections in relation to apparatus

1420The repeal of the existing code does not affect paragraphs 17 and 18 of that code as they apply in relation to anything whose installation was completed before the repeal comes into force.

15(1)Subject to the following provisions of this paragraph, the repeal of the existing code does not affect paragraph 20 of that code as it applies in 25relation to anything whose installation was completed before the repeal comes into force.

(2)A right under paragraph 20 is not by virtue of sub-paragraph (1) exercisable in relation to any apparatus by a person who is a party to, or is bound by, an agreement under the new code in relation to the apparatus.

(3)30A subsisting agreement is not an agreement under the new code for the purposes of sub-paragraph (2).

16Part 12 of the new code does not apply in relation to apparatus whose installation was completed before the new code came into force.

Tree lopping

17(1)35This paragraph applies where—

(a)before the time when the new code comes into force, a notice has been given under paragraph 19 of the existing code, and

(b)at that time no application has been made to the court in relation to the notice.

(2)40The notice and any counter-notice under that paragraph have effect as if given under paragraph 78 of the new code.

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18(1)This paragraph applies where before the time when the new code comes into force—

(a)a notice has been given under paragraph 19 of the existing code, and

(b)an application has been made to the Court in relation to the notice.

(2)5The existing code continues to apply in relation to the application.

Right to require removal of apparatus

19The repeal of the existing code does not affect the operation of paragraph 21 of that code in relation to an entitlement under sub-paragraph (3) of that paragraph arising before the repeal comes into force.

20(1)10This paragraph applies if—

(a)a person has given notice under sub-paragraph (2) of paragraph 21 of the existing code before the time when the repeal of that code comes into force,

(b)the 28 day period mentioned in sub-paragraph (3) of that paragraph 15ends after that time, and

(c)no counter-notice is given under that paragraph within that period.

(2)Paragraphs 38(6) and (7) and 39 of the new code apply in relation to that person as they apply in relation to the landowner mentioned in paragraph 38(6).

21(1)20This paragraph applies if—

(a)a person has given notice under sub-paragraph (2) of paragraph 21 of the existing code before the time when the repeal of that code comes into force,

(b)a counter-notice has been given under sub-paragraph (3) of that 25paragraph before or after that time, and

(c)no application has been made to the court under that paragraph by the operator.

(2)The counter-notice has effect as a notice under paragraph 19(2) of the new code.

(3)30On an application under paragraph 19 of the new code as it applies by virtue of sub-paragraph (2), the court may not make an order under that paragraph (in addition to the circumstances provided for in sub-paragraph (5) of that paragraph) if it appears to the court, in relation to any relevant agreement—

(a)that there were substantial breaches by the operator of its obligations 35under the agreement, or

(b)that there were persistent delays by the operator in making payments to the site provider under the agreement.

(4)In sub-paragraph (3) “relevant agreement” means any agreement between the operator and the landowner that was in force before the right to require 40removal arose under paragraph 21 of the existing code.

22(1)This paragraph applies if, before the repeal of the existing code comes into force—

(a)an application has been made to the court under paragraph 21 of that code, and

(b)45the matter has not been determined by the court.

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(2)The repeal of the existing code does not affect the operation of paragraph 21 of that code in relation to the application.

(3)But any party to the proceedings may apply to the court for an order that the application be treated as an application to the court under paragraph 19 of 5the new code.

(4)The court must grant an application under sub-paragraph (3) unless it thinks it would be unreasonable in all the circumstances to do so.

Undertaker’s works

23The repeal of the existing code does not affect the operation of paragraph 23 10of that code in relation to works—

(a)in relation to which a notice has been given under that paragraph before the time when that repeal comes into force, or

(b)which have otherwise been commenced before that time.

Supplementary

2415Any agreement which, immediately before the repeal of the existing code, is a relevant agreement for the purposes of paragraph 29 of that code is to be treated in relation to times after the coming into force of that repeal as a relevant agreement for the purposes of paragraph 17 of the new code.

25Part 15 of the new code applies in relation to notices under this Schedule as 20it applies in relation to notices under that code.

26Paragraphs 24 to 27 of the existing code continue to have effect in relation to any provision of that code so far as the provision has effect by virtue of this Schedule.

27A person entitled to compensation by virtue of this Schedule is not entitled 25to compensation in respect of the same matter under any provision of the new code.

130In section 23 of the Landlord and Tenant Act 1954 (tenancies to which provisions on security of tenure for business etc tenants apply) after subsection (4) insert—

“(5)This Part does not apply to a tenancy the primary purpose of which is to grant code rights within the meaning of Schedule 3A to the 35Communications Act 2003 (the electronic communications code).””

3In section 5 of the Landlord and Tenant (Covenants) Act 1995 (tenant released from covenants on assignment of tenancy), after subsection (4) insert—

“(5)This section is subject to paragraph 15(4) of Schedule 3A to the 10Communications Act 2003 (which places conditions on the release of an operator from liability under an agreement granting code rights under the electronic communications code).””

4In Article 4(1) of the Business Tenancies (Northern Ireland) Order 1996 15(tenancies to which the Order does not apply) after paragraph (k) insert—

“(l)a tenancy the primary purpose of which is to grant code rights within the meaning of Schedule 3A to the Communications Act 2003 (the electronic communications code).””

20Communications Act 2003 (c. 21)Communications Act 2003 (c. 21)

5The Communications Act 2003 is amended as follows.

6(1)Section 394 (service of notifications and other documents) is amended as follows.

(2)In subsection (2) omit paragraph (d).

(3)25After subsection (10) insert—

“(11)In its application to Schedule 3A this section is subject to paragraph 87 of that Schedule.””

7(1)Section 402 (power of Secretary of State to make orders and regulations) is amended as follows.

(2)30In subsection (2) after paragraph (a) insert—

“(aa)regulations under paragraph 91 of that Schedule which amend, repeal or modify the application of primary legislation,”.”

(3)After subsection (2) insert—

“(2A)35A statutory instrument containing (whether alone or with other provisions) regulations under paragraph 91 of Schedule 3A which amend, repeal or modify the application of primary legislation, may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””

(4)40After subsection (3) insert—

“(4)In this section “primary legislation” means—

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(a)an Act of Parliament,

(b)a Measure or Act of the National Assembly for Wales,

(c)an Act of the Scottish Parliament, or

(d)Northern Ireland legislation.””

5Consequential repeal

8In consequence of the amendments made by section 4 and this Schedule, Schedule 3 to the Communications Act 2003 is repealed.